United States District Court, W.D. Kentucky, Bowling Green Division
PARIMAX HOLDINGS, LLC; AMTOTE INTERNATIONAL, INC. PLAINTIFFS
KENTUCKY DOWNS, LLC ET AL., DEFENDANTS
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl, United States Magistrate Judge.
a discovery dispute that has resulted in cross motions to
compel by Plaintiffs Parimax Holdings, LLC and AmTote
International, Inc. and Defendants Kentucky Downs, LLC,
Exacta Systems, LLC, and Magellan Gaming, LLC.
Plaintiff's motion to compel is located at (DN 103
SEALED) and (DN 104). Defendants' response is at (DN 115)
and (DN 117 SEALED), and Plaintiffs' reply is at (DN 124)
and (DN 125 SEALED). Defendants' motion is at ¶ 105
(SEALED) and (DN 106). Plaintiffs' response is at (DN
113) and (DN 114 SEALED), and Defendants' reply is at (DN
122 SEALED). Both motions are ripe for review. For the
reasons set forth below, Plaintiffs' motion to compel is
denied in full, and Defendants' motion to compel is
granted in part.
case (the Parimax case) is the companion case to AmTote
International Inc. v. Kentucky Downs, LLC et al., civil
action No. 1:15-CV-00047-GNS (the AmTote case). The Parties
have agreed to consolidate the two actions for purposes of
discovery only, pursuant to the terms of the Second Agreed
Amended Joint Scheduling Order ("the Agreement")
(DN 67). Paragraph 7 of the Agreement provides that discovery
produced in the Parimax case shall be deemed to have been
produced in the AmTote case, and vice versa (Id. p.
3). The Agreement further provides that requests propounded
in one case do not count toward the total limit of requests
propounded in the companion case (Id.).
undersigned ordered a telephonic conference held on November
2, 2017 (DN 133). The purpose of the telephonic conference
was to ensure that, though discovery in the two cases is
proceeding jointly, the parties did not believe a request
propounded in one case to also constitute a request in the
companion case. The parties expressed that they understood
requests for discovery to apply only to the cases in which
the requests were propounded, notwithstanding the fact that
information gathered from the requests is deemed produced in
to compel responses to written discovery are governed by Rule
37 of the Federal Rules of Civil Procedure. Blanton v.
Torrey Pines Prop. Mgmt., No. 15-CV-0892 W (NLS), 2017
U.S. LEXIS 72381, at * (S.D. Calif. May 10, 2017). As a
threshold matter, the moving party must have standing to
bring the motion to compel under Rule 37. Id.
(citations omitted). The text of Rule 37(a)(3)(B) provides
that "[a] party seeking discovery may
move for an order compelling an answer, designation,
production, or inspection." (emphasis added). Thus, only
the party who propounded the disputed discovery requests has
standing to move to compel their answers. Payne v. Exxon
Corp., 121 F.3d 503, 510 (9th Cir. 1997) (holding
defendant lacked standing to compel a response to
codefendant's discovery request). The Sixth Circuit has
not directly addressed this distinction, but other district
courts have reached the same conclusion based on a plain
reading of the Rule. See e.g. Phoenix Life Ins. Co. v.
Raider-Dennis Agency, Inc., Nos. 07-CV-15324,
08-CV-11562, 2010 WL 839416, *1 (E.D. Mich. Mar. 4, 2010)
(Noting that a plain reading of the Rule suggests only the
party who issued a discovery request may seek to enforce the
request); Kingsway Financial Servs., Inc. v. Price
Waterhouse-Coopers, LLP, No. 03 Civ. 5560(RMB)(HBP),
2009 WL 72165, *3 (S.D.N.Y. Jan. 9, 2009) (same); In re
Urethane Antitrust Litig., 237 F.R.D. 454, 457 (D. Kan.
2006) (same). While the present matter has the added wrinkle
that two cases have been consolidated for discovery purposes,
the reasoning is the same.
review of all of both parties' exhibits reveals that
AmTote, and only AmTote, propounded the discovery request at
issue, and it did so only in the AmTote case (see DN
117-4 SEALED at PageID # 2258, AmTote's Third Set of
Requests for Production of Documents). Yet, in this case,
both Parimax and AmTote have moved to compel Defendants to
provide more fulsome responses to the written discovery that
AmTote propounded in the AmTote case (DN 103). The
undersigned will deny Parimax and AmTote's motion to
compel in this case (DN 103) because the AmTote case is the
appropriate action in which to file the motion to compel, and
AmTote is the only party with standing to pursue the relief
sought. Contemporaneously, the undersigned will issue an
order addressing AmTote and Parimax's motion to compel in
the AmTote case (DN 152).
next issue is the substance of Defendants' motion.
Defendants' use their motion to compel as a vehicle of
reiterating why the undersigned should not grant AmTote's
motion, but they further note that, if AmTote's motion is
granted, then Defendants should be entitled to compel
responses and documents to very similar discovery requests
propounded to AmTote and Parimax. The Plaintiffs respond that
Defendants' motion isn't timely because Defendants
have not yet sent Plaintiff a deficiency letter nor made any
effort to resolve the dispute without court intervention.
Court has broad discretion in matters affecting discovery.
Trepel v. Roadway Express, Inc., 194 F.3d 708 (6th
Cir. 1999). Thus, while Defendants have not strictly complied
with LR 37.1, judicial economy favors resolving this issue at
the present time rather than forcing the parties into
unnecessary and what are certain to be fruitless attempts at
further negotiations. Nat'l Info. & Commc'ns
Equip. Network, Inc. v. Willagan, et al., No. 06-28-DLB,
2007 WL 773774, at *3 (E.D. Ky. Mar. 9, 2007). Moreover, as a
result of the parties' positions advanced during the June
30, 2017 telephonic conference, the undersigned greenlit both
parties to file reciprocal motions to compel on these issues
(DN 101). Plaintiffs' argument is therefore not
well-taken, and the undersigned will address the merits of
to the merits, the undersigned notes that AmTote's own
expert opined that accessing the source code and other
sensitive documents is the only means by which he can
conclude whether or not the Exacta System is derivative of
the AmTote and Race Tech systems. The Court discussed this in
detail in the AmTote case, where it ruled on the substance of
AmTote's motion to compel. If it is true that the only
means of knowing whether the Exacta System is derivative of
the AmTote and Race Tech systems is to examine the source
code and other confidential documents, then it would follow
that the only means for Exacta to refute such a finding is to
allow its own expert to examine the systems side-by-side.
appears to be one bit of confusion, however, and it may be a
result of this Court's order to the parties. Parimax
argues the Parimax system is not relevant to this litigation
because Parimax is the successor in interest to RaceTech (DN
122 at PageID # 2033). While Parimax has inherited the
intellectual property rights and, as a result, the rights
associated with this lawsuit, the Parimax pari-mutuel
wagering system is not the focus of the action (Id.
at PageID # 2034-35). Parimax is not asserting